United States v. Private First Class MICHAEL A. RUSSELL
ARMY 20150397
| A.C.C.A. | Nov 18, 2016Background
- Appellant, PFC Michael A. Russell, pleaded guilty at a general court-martial to indecent language and multiple child-pornography–related offenses under Articles 120b and 134, UCMJ.
- The factual core: Russell solicited his 14-year-old niece on multiple occasions to photograph her nude/genital images and send them to him; she complied.
- Two specifications at issue (Specifications 5 and 6 of Charge II) alleged (a) solicitation to distribute the images to him and (b) solicitation to produce the images; the dates/locations otherwise matched.
- In a negotiated pretrial agreement, Russell waived “all waivable motions.” Despite that, at trial he moved to merge two pairs of specifications for sentencing; the government joined the motion and the military judge granted it (reducing punitive exposure).
- On appeal Russell argued the two solicitation specifications (5 and 6) were an unreasonable multiplication of charges for findings and should have been merged for findings, not just sentencing; the court declined to reach the argument and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two solicitation specifications were unreasonably multiplicative for findings | Russell: Specifications 5 and 6 are duplicative and should merge for findings | Government: Russell waived challenges by pleading guilty and agreeing to waive all waivable motions; joining merger for sentencing confirmed the negotiated deal | Court: Guilty plea waiver bars the multiplicity claim on appeal unless charges are facially duplicative; decline to exercise plenary review and affirm |
Key Cases Cited
- United States v. Schweitzer, 68 M.J. 133 (C.A.A.F.) (guilty plea waives multiplicity claims unless facially duplicative)
- United States v. Pauling, 60 M.J. 91 (C.A.A.F.) (same principle regarding plea waivers and non‑facially duplicative offenses)
- United States v. Nerad, 69 M.J. 138 (C.A.A.F.) (discusses appellate courts' discretion to notice waived or forfeited error)
- United States v. Chin, 75 M.J. 220 (C.A.A.F.) (addresses deference to terms of negotiated pleas and when relief is appropriate)